Colonies defendants, from the left; Paul Biane, a former San Bernardino county supervisor, Jeff Burum, a Rancho Cucamonga based developer, Jim Erwin, former assistant county assessor, and Mark Kirk, the former chief of staff for San Bernardino County Supervisor Gary Ovitt. (Staff file photos/The Sun)

SAN BERNARDINO >> A defense attorney’s bid to get the San Bernardino County’s Colonies corruption case dismissed was rescheduled Friday until July 15.

Claiming prosecutors destroyed evidence, defense attorney Stephen Larson — who is representing defendant developer Jeff Burum — filed a motion May 13 seeking dismissal on grounds prosecutors at the state Attorney General’s Office, which is jointly prosecuting the case with the San Bernardino County District Attorney’s Office, did not save email between prosecutors and County Counsel that Larson says was exculpatory evidence.

San Bernardino Superior Court Judge Michael A. Smith gave prosecutors until June 27 to file a response to Larson’s motion, and he gave Larson until July 8 to counter the prosecution’s response.

Smith will hear arguments from both sides on July 15, when he is expected to rule on Larson’s motion.

Burum, a Rancho Cucamonga developer, and three former top county officials were indicted in May 2011, accused of conspiring to fix a landmark $102 million settlement between the county and Burum’s investor group, Colonies Partners LP., in November 2006. Also charged in the case are former county Supervisor Paul Biane, former Assistant Assessor Jim Erwin and Mark Kirk, former chief of staff for erstwhile county Supervisor Gary Ovitt.

All four defendants deny wrongdoing and have pleaded not guilty.

Prosecutors allege the settlement was tainted by bribery and was essentially a gift of taxpayer funds. Burum, prosecutors maintain, paid each of the other three defendants and former Board of Supervisors Chairman Bill Postmus $100,000 bribes, disguised as contributions to sham political action committees secretly controlled by the defendants.

The bribes were in exchange for Postmus and Biane approving the settlement in Colonies’ favor. Kirk stands accused of accepting a bribe in exchange for delivering Ovitt’s vote approving the settlement, according to the indictment.

The settlement ended a nearly five-year legal battle over who was responsible for paying for flood control improvements at Colonies’ 434-acre residential and commercial development in Upland, Colonies at San Antonio and Colonies Crossroads, respectively.

But the terms of the settlement were mired in controversy, creating consternation and mistrust among county officials and their attorneys during settlement negotiations, according to grand jury transcripts. No county attorney, either in-house or outside counsel, ratified the settlement.

In March 2011, Postmus struck a plea bargain with prosecutors, admitting he took the $100,000 bribe from Burum in exchange for his vote approving the settlement. He pleaded guilty to 10 felonies in connection with the Colonies case and a companion corruption case in which he was accused of abusing his elected office for political gain.

Per his plea agreement, Postmus has agreed to turn state’s evidence and testify against the defendants at trial in exchange for leniency.

While prosecutors maintain the $102 million settlement was excessive and a theft of taxpayer money, the defendants maintain it was reasonable, was validated by the court, and actually saved taxpayers upwards of $200 million.

In his motion seeking dismissal of the indictment, Larson argues that Deputy County Counsel Mitch Norton, who headed the Colonies litigation, had reversed his position since 2006 and, along with then-County Counsel Ruth Stringer, had actually been defending the settlement in court in an indemnity case the county was litigating.

The email communications between prosecutors and County Counsel, Larson maintains, would have shown prosecutors were aware Norton had reversed his opinion about the settlement and chose to withhold that information, which Larson maintains was exculpatory evidence, from the grand jury.

Joe Nelson is an award-winning investigative reporter who has worked for The Sun since November 1999. He started as a crime reporter and went on to cover a variety of beats including courts and the cities of Colton, Highland and Grand Terrace. He has covered San Bernardino County since 2009. Nelson is a graduate of California State University Fullerton. In 2014, he completed a fellowship at Loyola Law School's Journalist Law School program.

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